WENDY J. MURPHY: Memo to judges: First do no harm!

Saturday

Feb 11, 2012 at 12:01 AMFeb 11, 2012 at 11:11 AM

The circumstances that allowed Josh Powell to incinerate his two children shine a much-needed light on serious flaws in our family court system.

‘I have proven myself to be a fit and loving parent.” So claimed a man in an affidavit days before expressing his parental fitness and love by incinerating his two children when they arrived for a visit last Sunday.

Josh Powell, a suspect in the 2009 disappearance of his wife Susan, insisted he was a good father when he recently asked a judge to give him custody of 5- and 7 year-old sons, Brayden and Charlie.

The judge denied his request but allowed the guy to have visits with the boys at his home in Washington, even though law enforcement officials recently found child pornography on a home computer Powell shared with his father. When a social worker arrived at Powell’s front door to facilitate the children’s visit with their dad, Powell pushed her away, pulled the children inside and ignited a blast that leveled the house and killed everyone inside.

This tragic ending shines a much-needed light on serious flaws in our family court system.

At a minimum, we should be asking how any judge could allow a father to be anywhere NEAR his children in the face of clear evidence that he killed his children’s mother, especially when the children were eyewitnesses to the circumstances surrounding their mother’s death. After Susan Powell disappeared, cops asked Josh what happened. He said he had no idea and that Susan had apparently left the family when she was home alone, after he’d taken his sons camping, in the middle of the night, in subfreezing temperatures. The kids soon reported that “mommy was in the trunk” during their “camping” trip and that she went away from the car “with daddy,” but never came back.

Wasn’t anyone worried that giving Powell visitation rights would enable the crime of witness intimidation, and undermine the children’s testimony in the criminal case? And what kind of legal system would find a man like Josh Powell “fit” to wipe a runny nose, much less spend time with a child or make important decisions about a child’s upbringing, values, health care, education, etc? This story is not atypical. While violent fathers do not regularly blow up houses with their kids inside, tens of thousands of children in this country are being forced to live with violent men because family court judges erroneously assume a guy can still be a great dad even if he beats or kills his wife.

These judges should take a gander at the Constitution. Only FIT parents can claim a legitimate fundamental right to raise their children. Violent parents are UNFIT. Family court judges get away with making dangerous decisions because they aren’t held accountable. The mother who resists complying with an unconscionable court order is threatened with the loss of all visitation rights. The child who refuses to visit with an abusive parent is forced to go, often by cops with guns, and threatened with foster care if they don’t comply.

Unlike other types of legal proceedings where court orders can be reversed on appeal if the judge makes a “legal error,” the family court functions more like a kingdom, with only minimal oversight and where decisions are made in true totalitarian style. An appeal can be filed but it will be upheld unless the judge “abused” his or her “discretion.” In other words, they can pretty much do anything they damn well please. This breadth of unchecked power inhibits thoughtful decision-making and enables barbaric results with impunity.

Family court judges put children in harm’s way so often, there are national conferences on the topic at hotels where rooms are filled with parents (mostly moms) telling stories about judges who gave full custody to violent men, often with the blessings of useless legal guardians and “court evaluators.” Prosecutors and cops are part of the problem because they usually refuse to file criminal charges to avoid “interfering” in family matters – even though the criminal code doesn’t differentiate and most experts would argue that violence in the home is a MORE serious crime than violence in the middle of Main Street.

No wonder mothers too often resort to desperate measures, including suicide, when they realize there is no hope because a judge who was duty bound to protect her and her children from harm ruled in favor of the abuser.

Family court cases can be complicated, but judges are supposed to put safety first. Josh Powell was the key suspect in his wife’s disappearance because there was a mountain of evidence against him. Without a conviction, the guy was entitled to the presumption of innocence in criminal court, but not parental fitness in family court. The judge who allowed him to visit with his children missed this very simple point. And now they’re all dead.

Wendy Murphy is a leading victims rights advocateand nationally recognized television legal analyst. She is an adjunct professor at New England Law in Boston. She can be reached at wmurphy@nesl.edu. Read more columns at The Daily Beast .

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